Date: 2013-10-10. Docket: 11-CV-436151. Perell, J. | Link

Appeal of a Master’s decision to dismiss the defendant’s motion for production of the plaintiff’s personal computer and cell phone records. This is a wrongful dismissal action. The plaintiff was employed by the defendant and mostly worked from home. The plaintiff was also working as a part time real estate agent, but assured the defendant she was not doing so when she should have been working for the defendant. The defendant found 7 emails over a period of 18 months on the plaintiff’s office computer that show the plaintiff was conducting her real estate business during working hours. The defendant seeks copies of the plaintiff’s emails and cell phone bills between November 26, 2009 and June 30, 2011 that in any way relate to her real estate business. The Master dismissed the motion for three reasons: (1) the documents were of marginal relevance, (2) the request amounted to a fishing expedition for relevant documents, and (3) it would be unreasonable and disproportionate to order production. Regarding proportionality, the Master accepted the plaintiff’s evidence that she would be required to review thousands of emails and would have to spend hundreds of hours to retrieve, review and redact these messages. Justice Perell upheld the Master’s decision because he correctly applied the proportionality principle to deny the defendant’s motion.